Lawyer in case against police says court trying to limit First Amendment

COLUMBIA - An attorney for the plaintiff in a case related to filming police actions in public has filed a petition for a rehearing, after a ruling from the 8th Circuit Court of Appeals in St. Louis.

The original case involved Matt Akins, founder of a group called Citizens for Justice, and his actions to document police actions. Akins posted some of his videos on the Columbia Police Department's Facebook page, which videos he said were later removed. Akins further claimed police ordered him to "stop filming the filing of a citizen complaint in the CPD lobby." Akins alleged these actions by CPD violated his First Amendment rights.

After filing the suit, Akins and his lawyer, Stephen Wyse, filed a motion seeking a recusal from the case by Judge Nanette Laughrey, which Laughrey denied. She also denied a second recusal request, as well as a request to reconsider her decision to grant a motion to dismiss, filed by the defendants, which include members of both the police department and Boone County's prosecutor's office. Finally, Laughrey granted a motion by the defendants for summary judgement, or a decision without a trial, while denying Akins' request for partial summary judgement.

In early June, Akins turned to the 8th Circuit Court of Appeals in St. Louis to consider his recusal requests. He claimed Laughrey should have recused herself for reasons including the following: Laughrey's husband is part of a mayoral task force for the City of Columbia, Akins had posted video in which he was critical specifically of Laughrey, his attorney had filed a complaint against Laughrey in the past, and Laughrey used to be a municipal judge in Columbia.

In response to Akins' petition, the appeals court panel found no legal justification for any of his claims and no reason why Laughrey should have been required to recuse herself. It also said in its ruling "we conclude that the district court did not err in its thorough and well reasoned opinions. Accordingly, we affirm."

Wyse said in a media release on Wednesday the appeals court, in affirming Laughrey's decision, stands by the district court's ruling that "neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.”

Wyse said further in his release, "The First Amendment is a core American value. The right to free speech and a free press are central to our liberty and our ability to hold our government accountable. This holding of the 8th Circuit undermines the basic rights of Missourians and the citizens of the six other 8th Circuit states and undermines the First Amendment rights for all Americans. I’ve asked the 8th Circuit to reconsider its ruling as a requirement for preparing our appeal to the U.S. Supreme Court."

In her ruling, Laughrey cited two cases. The first was Rice v. Kempker, a 2004 case between the Reverend Larry Rice, head of the New Life Evangelistic Center, and the Department of Corrections. In that case, Rice argued the Department of Corrections policy banning cameras from execution chambers violated the First Amendment right of public access. The court ruled in favor of the Department of Corrections, arguing any burden on constitutional access rights were legitimate because of concerns about the treatment of people convicted of crimes.

The second case was Wisconsin Interscholastic Athletic Association v. Gannett Company, Inc. In 2005, WIAA contracted a video production company to stream its athletic tournament events online. Newspapers with Gannett argued the license agreements violated First Amendment rights to broadcast the games. The court ruled in favor of WIAA.

In her decision related to Akins' case, Laughrey said the following:

"Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department’s Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents...Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. [Akins'] links to the Police Department’s Facebook page were treated the same as everyone else’s and there is no constitutional right to unlimited posting."

Laughrey continued by addressing Akins' claims he was illegally barred from a media training event held by CPD: "Finally, with respect to the media training event, Akins was not a member of the traditional media, nor does the record show he was an active nontraditional media member at the time. Space was limited. These were content-neutral reasons not to create an exception for Akins to attend the invitation-only event. The media does not enjoy a right of equal access or special First Amendment rights."

For this reasoning Laughrey cited Snyder v. Ringgold, a case out of Baltimore dealing with the question of whether reporters have equal right to exclusive stories, specific interviews, or off-the-record statements. The court in this case ruled they do not have that equal right.

Professor Sandy Davidson, who teaches communication law at the University of Missouri School of Journalism, said key questions include what exactly falls under the defition of a "government proceeding" and what is permissible or legal versus what is a First Amendment right. For example, courts and judges can limit media access to trial proceedings while still allowing the public to attend, and the U.S. Supreme Court does not allow cameras in its proceedings. Where police actions in public places fall in the larger area of public government activity has not been made clear by the court.

(Editor's note: this story has been updated to include insight from Professor Sandy Davidson from the University of Missouri School of Journalism)